The debate over transgender rights is heating up. How will faith groups respond?

Kelsey Dallas, Deseret News

Sunday

Nov 25, 2018 at 2:35 AM

Massachusetts voters upheld nondiscrimination protections for the transgender community last week.

The "t" in LGBT rights will be in the spotlight in 2019, as states and courts across the country debate transgender rights and their impact on the religious groups.

The transgender community is celebrating a big Election Day win in Massachusetts, where two-thirds of voters said yes to Question 3, upholding gender identity nondiscrimination protections in public accommodations. However, securing favorable new laws and court rulings will be difficult, since policymakers, activists and legal scholars disagree on how best to protect transgender men and women and religious objectors to same-sex marriage at the same time.

LGBT rights activists and religious freedom advocates say they don't want to repeat battles waged over protections for gays and lesbians, which are still ongoing. But the two groups remain divided on the value of religious exemptions to civil rights law and many people of faith argue the concept of gender identity isn't compatible with their faith.

Four in 10 Christians say "society has 'gone too far' in accepting transgender people," according to Pew Research Center.

"Transgender people are saying, 'I was created in the wrong body.' … That asks someone who believes in the perfection of God's creation to accept that God made a mistake," said Rabbi Jack Moline, president of Interfaith Alliance, an organization that advocates for the separation of church and state.

Already, religious business owners and faith-based nonprofits have cited conscience rights to defend against allegations of transgender discrimination. Members of the LGBT community, as well as their supporters, argue that religious freedom doesn't include a right to discriminate.

Reducing conflict between the LGBT community and conservative people of faith and reaching compromises will be difficult, but a growing group of leaders is committed to the task, said Naomi Goldberg, policy and research director for the Movement Advancement Project, an independent think tank that does research and advocacy work on LGBT rights.

"There's a lot of work being done in communities by people who are transgender. They're explaining what that means. In communities of faith, red states and blue states, there's a lot of really great work happening," she said.

Legal and legislative trends

Like gays and lesbians, one of the core concerns of the transgender community is securing nondiscrimination protections, LGBT rights activists said. So far, 20 states have passed legislation prohibiting gender identity discrimination in housing, hiring and public accommodations, according to the Human Rights Campaign, an advocacy organization focused on securing civil rights for the LGBT community. Utah prohibits it in housing and hiring.

In 2018, 17 states considered 37 bills aimed at expanding nondiscrimination protections for the LGBT community, according to a Deseret News analysis. Only one bill passed, but supporters are going to keep trying, said Logan Casey, who works with Goldberg at the Movement Advancement Project.

"People are supporting and passing nondiscrimination ordinances at the local level and state level," he said. "That's an ongoing effort."

What complicates these policy efforts is that the concept of gender identity is relatively new in the legal and legislative world, noted Tim Schultz, president of the 1st Amendment Partnership.

"Public policy has well-developed ways of thinking about sexual orientation. We have had related laws since the 1980s at least. Culturally, legally, we have ways of thinking about it. With gender identity we don't," he said.

For example, after the Obama administration released a "Dear Colleague" letter in May 2016 instructing schools to "treat students consistent with their gender identity," educators struggled to determine which students counted as transgender under the guidelines. Before such questions could be answered, President Donald Trump took office and rescinded the policy.

Another challenge is that legal experts don't agree on what protections already exist. Groups like the ACLU, as well as members of the Obama administration, believe that federal statutes prohibiting sex discrimination, such as Title IX, also protect against sexual orientation and gender identity discrimination. The Trump administration says those statutes can only be narrowly applied.

"In October of 2017, (then-Attorney General) Jeff Sessions put out a memo directing Justice Department lawyers not to take the position that transgender discrimination is a form of sex discrimination," said Ria Tabacoo Mar, a senior staff attorney with the ACLU.

The Supreme Court could rule on the scope of federal sex discrimination laws as soon as this term. On Nov. 30, justices will meet to consider whether to hear one or more of three cases on this issue. R.G. & G.R. Funeral Homes, Inc. v. Equal Employment Opportunity Commission involves an allegation of transgender discrimination.

Religious conflict

Despite these complications, transgender rights advocates believe they've got momentum on their side. The win for Question 3 in Massachusetts is the latest in a series of legislative and legal victories, said Casey, who is a policy researcher.

"Voters are affirming that they support transgender protections at the local and state level," he said.

Although advancing LGBT rights is generally thought to be a liberal cause, Republican lawmakers have started joining with Democrats in some states to craft new protections for the transgender community. New Hampshire, which has a Republican-controlled legislature and a Republican governor, passed a law this year adding gender identity to its list of protected characteristics.

"There are always going to be partisan differences on the issue. But, for the most part, what we're seeing is growing agreement in public opinion … that LGBT protections are good for the country," Casey said.

Overall, 4 in 10 U.S. adults say society has "not gone far enough" in accepting people who are transgender, according to Pew Research Center. Half of Americans (53 percent) oppose laws requiring transgender people to use the bathrooms that correspond to their sex at birth, Public Religion Research Institute reported in 2017.

Although religious leaders were among the supporters of Question 3 in Massachusetts, many people of faith still struggle with the concept of gender identity, as Rabbi Moline noted.

Gender identity is a theologically challenging concept, Rabbi Moline said. Conservative believers argue that God created the categories of male and female and that human beings have no right to blur the lines between them.

"Every human being knows that there are important, and necessary, differences between men and women. Without such recognition, women are harmed and men are coarsened," wrote Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, last year.

These religious teachings have come up in transgender discrimination cases. In its federal appeal, the owners of R.G. and G.R. Harris Funeral Homes argued that the Religious Freedom Restoration Act protected their ability to fire a transgender worker. But the 6th Circuit Court of Appeals rejected the claim, writing that accommodating a transgender worker does not substantially burden religious beliefs, that the government has a compelling interest in ending transgender discrimination and that there is no less restrictive means by which to protect transgender workers.

In their appeal to the Supreme Court, attorneys for R.G. and G.R. Harris Funeral Homes narrowed the scope of their arguments, focusing on how to interpret Title VII, which prohibits employment discrimination. They argue that sex discrimination does not include gender identity discrimination.

More recently, the Hope Center, a faith-based social services agency in Anchorage, Alaska, made a more compelling religious freedom argument in a federal lawsuit against the city's Equal Rights Commission, which is in the process of determining whether the Hope Center violated the law by turning a transgender woman away from their women's shelter.

"Anchorage has come after the Hope Center and is now telling them they have to allow biological men into a women's-only shelter, even though doing so would be traumatic" for other clients, said Kate Anderson, senior counsel with the Alliance Defending Freedom, the prominent religious liberty law firm representing the center.

This year's legislative push to expand LGBT rights was mirrored by an effort to expand protections for conservative religious Americans, according to the Deseret News analysis. Six states considered bills that would prevent the government from penalizing people of faith who violated LGBT nondiscrimination laws.

These bills, like most of the proposed LGBT rights protections, addressed the needs of one community, while mostly ignoring the needs of others. In 2015, Utah showed it's possible to bring conservative religious groups and LGBT rights activists together and work out a compromise, but few states have tried to follow its lead.

Religious freedom advocates like Schultz believe balanced legislation aimed at protecting religious conservatives and members of the LGBT community at the same time can reduce the likelihood of lawsuits. However, religious exemptions are a hard sell for the LGBT community, as they have been since the legalization of same-sex marriage.

"The freedom of religion is something we all care about very deeply," Casey said. "But the freedom of religion is different than the harms that come from religious exemption laws."

He and Goldberg said religious exemptions to general laws hurt more than just the LGBT community, citing a recent conflict over faith-based adoption agencies in South Carolina seeking a right to only work with couples who share their religious beliefs. If the federal government protects the faith-based agencies, Jewish or Muslim parents could have as much trouble as gay parents finding an agency that wants to work with them, they said.

Building understanding

Even if legal and legislative clashes over transgender protections can't be avoided, LGBT and religious rights activists hope future debates will be more civil than battles over the rights of gays and lesbians. Religious conservatives once villainized the gay community as "deviants and perverts" who didn't deserve a say in legislation, as the Deseret News reported last year.

Rabbi Moline's organization released a statement defending transgender Americans last month after The New York Times reported the Trump administration was considering making gender unchangeable under the law. One of their goals is to "change the tone" of religious freedom debates, he said.

"We can show the healing power of religion in society as opposed to the dividing power of religion," Rabbi Moline said.

More conservative religious groups have also called for respect for transgender men and women. But sometimes it's done in a way that, counterintuitively, could lead to more outrage.

For example, in 2017, Moore wrote, "We should never mock or belittle those suffering gender identity disorders. These are our neighbors to be respected and served, not freaks to be despised." Transgender rights advocates have fought against using words like "disorder" to describe the experiences of transgender men and women.

Rabbi Moline expects faith groups' approach to transgender issues to grow more nuanced as they learn more about the community's experiences. He went through this kind of evolution himself.

"Once I knew (transgender) people, thinking about them as children of God in the same way I think of myself and my family members was a no-brainer," he said.

Currently, only 21 percent of U.S. adults have a close friend or family member who is transgender, compared to 70 percent who are close to someone who is gay, according to Public Religion Research Institute.

Members of the transgender community will become more visible in the months ahead, as they fight for new legislative and legal protections, Goldberg said.

"More transgender people are sharing their lives and sharing what it means to be transgender with the public and with their communities," she said. "I think that builds understanding."